Is the Boy Scouts of America a Religious Organization?

This is a partial transcript from The O'Reilly Factor, January 15, 2003.

Watch The O'Reilly Factor weeknights at 8 p.m. and 11 p.m. ET and listen to the Radio Factor!

BILL O'REILLY, HOST: In “The Factor" Follow-Up segment tonight, as you know, the City of San Diego has agreed to throw the Boy Scouts (search) off city land and pay the ACLU a million bucks. That organization sued San Diego saying it had no right to give the Boy Scouts access to Balboa Park because the Scouts are a, "religious organization." That was ruled by a federal judge.

Now, Wednesday night, San Diego City Councilman Michael Zucchet and I had a rather intense exchange.

(BEGIN VIDEO CLIP)

MICHAEL ZUCCHET, SAN DIEGO CITY COUNCIL: Let me just read you from the judge's statement. He says, "Not only does the Boy Scouts of America concede that it is a religious organization, but it insists that its religion is, in fact, fundamental to its purpose and mission."

O'REILLY: All right. Now we researched this for the past 24 hours, and here's how it goes down.

On October 21, 2003, Greg Shields, a national spokesman for the Boy Scouts of America, said this to Fox News: "The Boy Scouts are not a religious organization. We cannot be described as a religious organization or a religion."

However, in several legal briefs, including one in a 1992 case in Kansas and another in 1998, lawyers for the Boy Scouts put in writing that the Scouts are a religious organization. Here's the quote in '98:

"Although Boy Scouts of America is not a religious sect, it is religious, and, while the local council is not a house of worship like a church or a synagogue, it is a religious organization."

Confused? So am I. Because if the Scouts say they are a religious organization, then the ACLU and the judges who dislike them can boot them off city properties all over the USA.

With us now is George Davidson, the lead counsel for the Boy Scouts. We're finally glad he's here. And Lis Wiehl, a Fox News legal analyst, who's here to explain to me because I can't understand a lot of this legal stuff exactly what's going on.

Counselor, do I have to apologize to this San Diego guy?

GEORGE DAVIDSON, LEAD ATTORNEY FOR BOY SCOUTS: Bill, I don't think you or the Boy Scouts have anything to apologize for. The Boy Scouts are proud to be an organization of people who believe in God. But there are Jewish Boy Scouts, Catholic Boy Scouts, Protestant Boy Scouts, Muslim Boy Scouts, Boy Scouts not affiliated with any particular religion.

Boy Scouts is not a religion. It is not a religious sect. It's an association of people who believe in God, and they're being dig discriminated against by San Diego because they believe in God.

O'REILLY: All right. And the federal government may get involved in the Justice Department. But, in two cases, as we cited, you have in print -- lawyers -- I don't know whether you or not -- that it is a religious organization.

So I'm sitting here and I'm going, look, this guy in San Diego -- I want to be honest. If I made a mistake, I want to admit it. Did I make a mistake?

DAVIDSON: Well, Bill, I don't think you made a mistake. Religious can be used in two different senses, and I think that you've got an ACLU word game going here. Religious can refer to religious sect, such as the Roman Catholic Church, and it can refer to belief in God generally.

O'REILLY: That's spiritual, not religious.

DAVIDSON: Oh, well, Boy Scouts is an organization of people that believe in the God.

O'REILLY: And God can be nature, right?

DAVIDSON: Well, I wouldn't get into defining that. We have a religious relationship...

O'REILLY: Well, we have statements from the Boy Scouts that God can be nature, like pantheism or, you know, deism and all of that.

DAVIDSON: Well, I do know they didn't let in the Wiccans who are...

O'REILLY: Yes, but that's a witchcraft, pagan deal. All right. Lis, should I apologize here?

LIS WIEHL, FOX NEWS LEGAL ANALYST: The problem is the Boy Scouts really walked into this one. In '92 and '98, they said they are a religious organization, and we could debate all night long about what that means.

But legally they said they were a religious organization and they didn't tell you that. They said they weren't. So I'm not sure you need to apologize.

But I do think you need to say why are you wanting your cake and eating it, too, here.

O'REILLY: Why did they use the term "we are a religious organization"?

DAVIDSON: Well, those cases, we had atheists wanting to be Scoutmasters, and you know, "On my honor, I'm going to do my best to do my duty to God" isn't going to get very far when you have an atheist Scoutmaster.

So we were protecting the organization's ability to set its own membership policies, which they have a constitutional right to do upheld by the Supreme Court.

O'REILLY: It seems like you want to have it both ways, though. it seems that you want to be a religious organization when you want to exclude atheists.

And I would have had spiritual organization, had I been writing that brief.

And then when you want access to public land in San Diego, you're not a religious organization.

DAVIDSON: Well, I don't think it really matters what we are in San Diego because we've got the Girl Scouts in Balboa Park.

O'REILLY: Well, it matters to me, and I think it matters to the audience. Look, counselor, let me be really brutally honest here because that's my style.

Ninety percent of the people watching here support you. They support the Boy Scouts because they know that the kids are being helped by the Boy Scouts of America, OK. That's 90 percent of people watching right now, I believe. And I think the mail will reflect that.

However, they don't want any games. They want a clear definition of how the Boy Scouts of America see themselves because there is a legal issue here that the ACLU is ramming down your throat.

DAVIDSON: Well, the establishment clause of the Constitution says that you can't establish religion. It doesn't say anything about a religious organization. That's a term that doesn't appear in the Constitution. Boy Scouts is not a religion, and helping the Boy Scouts is not establishing a religion.

WIEHL: But both statutes -- in the California statute and the Kansas statute -- talk about religious organizations under the anti-discrimination law, and that's where that comes in. I mean I am in favor of the Boy Scouts.

O'REILLY: Your kid's a Boy Scout, right?

WIEHL: My kid's a Boy Scout, exactly. But you can't have it both ways. You can't say, the Boy Scouts aren't a religious organization when you want to and then define yourself as a religious organization when...

O'REILLY: But isn't it true that other organizations that have affiliations with churches, all right, do business with cities all over the country?

WIEHL: And what you would say, Bill, is two wrongs don't make a right. Now maybe those cases are the next to come in are to come in line.

O'REILLY: But I don't think that's wrong.

WIEHL: If you say establish yourself as a religious organization, then there is an issue of separation of church and state.

O'REILLY: But the Boy Scouts haven't established themselves as that.

WIEHL: They have named themselves as a religious organization.

O'REILLY: They haven't established themselves as that. They use that to exclude atheists, which I wouldn't do, Counselor, and I think you ought to rethink that. I'd say we're spiritual in nature, and this is our charter. We want a belief in a higher power, it could be nature, and if you come in and say I don't believe in a higher power, you don't fit`.

DAVIDSON: Well, that's right.

O'REILLY: Well, why don't you say spiritual instead of religious? See, look, this Judge Napoleon Jones, who hates you guys, all right -- he took this and he's using it as a club to bang you with.

DAVIDSON: Well, Bill, we've had some losses against the ACLU in some of the lower courts over the years, but, for 25 years, we've been beating back the ACLU every time and, I have to tell you, without a lot of help. Other organizations have been running like deer, while the Boy Scouts...

O'REILLY: Well, we're the only ones helping you.

DAVIDSON: Well, that's right.

O'REILLY: The Factor is the only one helping you.

DAVIDSON: We greatly appreciate it because the other organizations haven't been there to stand up.

O'REILLY: All right. Where is the San Diego case right now? It's on appeal, right?

DAVIDSON: Well, actually, we have to wait until the end of the case to appeal it, and there's another property, the Fiesta Island property, which Judge Jones hasn't yet ruled on. So we have to have a trial on that property. Then we can go up to the Ninth Circuit Court of Appeals…

O'REILLY: Well, you're going lose in the Ninth Circuit Court of Appeals because those people are Maoists. I mean they hate you. You're going to have to take this to the Supreme Court just like you took the membership deal there.

DAVIDSON: Well, we're not afraid to do that. In fact, we have a case we took to the Supreme Court on Christmas Eve involving another attempt by government discriminating against the Boy Scouts in Connecticut.

O'REILLY: All right. So this is an ongoing litigation, and should I apologize to this guy?

WIEHL: I don't think you need to apologize. I do think you need to say, though, you can't have it both ways.

O'REILLY: All right. You can't have it both ways, Counselor. Use the word "spiritual" instead of "religion" and give us a break here, OK, because we do want to obey the law in the United States.

Lis, Counselor, thanks very much. We hope that cleared up something. I think I owe that guy a little bit of an apology in San Diego, an apology with an explanation, all right.

Copy: Content and Programming Copyright 2004 Fox News Network, Inc. ALL RIGHTS RESERVED. Transcription Copyright 2004 eMediaMillWorks, Inc. (f/k/a Federal Document Clearing House, Inc.), which takes sole responsibility for the accuracy of the transcription. ALL RIGHTS RESERVED. No license is granted to the user of this material except for the user's personal or internal use and, in such case, only one copy may be printed, nor shall user use any material for commercial purposes or in any fashion that may infringe upon Fox News Network, Inc.'s and eMediaMillWorks, Inc.'s copyrights or other proprietary rights or interests in the material. This is not a legal transcript for purposes of litigation.